N95Masks

In these especially challenging times, one must be able to see through the fog of distracting information.

The same holds true for the bureaucratic process of filing for a patent. A case in point is a 3M Company patent (U.S. Patent No 3,064,329) for a molded nonwoven fabric article and related manufacturing process for making items such as porous breath-filtering face masks used by surgeons, physicians, and nurses subjected to contaminated atmospheres. Nowadays, we might call such items N95 masks.

Back in 1959, 3M equated their masks to women’s
undergarments. But notwithstanding the
distracting patent illustrations, this U.S. patent is not what some may think
of when considering N95 masks. Why is
that?

The U.S. Patent & Trademark Office (USPTO) uses an
arcane classification system to pigeon-hole patent applications into the proper
“bucket” of technology. Although the
original patent classification of this 3M patent has changed during
reclassification efforts of the last 60 years, this patent is currently
classified in U.S. patent class 450, subclass 39. Here, the USPTO classifies inventions that
include “breast or chest, e.g., brassieres; molded preshaped shell-like cup,
e.g., plastic latex”.

Interestingly, the broadest claims of this patent actually
make no mention of breasts or brassieres.
Rather, brassieres are buried in two short claims towards the end of the
list of claims. So how can a brassiere
patent not be a brassiere patent, and why would 3M or any patent applicant
obfuscate the intended invention?

The answer can be as simple as the first rule of any good
persuasive writing: write for your audience.

The USPTO includes over 8,000 patent examiners that review
patent applications in discrete buckets of technology. Over time, each examiner
becomes expert in reviewing their own peculiar area of inventions. This pejoratively
means that each examiner knows a lot about very little.

One way that seasoned patent practitioners have learned to
use this to their advantage is to draft a patent application broadly enough to
cover the intended commercial product, but simultaneously insert enough flavour
into the application to shepherd the case into a preferred bucket of
technology. In the case of the 3M
patent, it is likely that the examiner who reviewed and granted that brassiere
patent was expert in women’s undergarments rather than N95 masks. In theory, this can make a patent
practitioner’s job a little easier when trying to persuade a USPTO examiner
that an invention is new and nonobvious.

Knowing how to effectively navigate the USPTO patent
classification system to get a patent application under the right examiner’s
nose can often affect the outcome of negotiations. So, when is a brassiere not a brassiere: when
the patent applicant calls it an N95 mask.